After having heard the substantive application, Justice Collier dismissed Ms Jones’ application. Ms Jones, who was the Chief Executive Officer of QTAC, had been the subject of serious bullying allegations by individual employees of QTAC and the Australian Services Union (“ASU”) (at [1]). Ms Jones had claimed that the ASU had orchestrated a campaign against her, relevant to her conduct in the 2009 enterprise bargaining negotiations as spokesperson for QTAC. Further, that in taking adverse action against her, it was alleged that QTAC had yielded and continues to yield to this campaign by the ASU, in contravention of the Fair Work Act 2009 (Cth). Ms Jones had sought many orders in her application, among which was that her employer not act upon any investigation report received concerning her alleged behaviour. Rejecting all these claims, Justice Collier said:

“[200] Further, I consider that QTAC’s actions were in no way related to any workplace rights of Ms Jones. I consider that Ms Jones’ role as bargaining representative, and her participation in enterprise agreement negotiations, were completely irrelevant to QTAC’s reasons for the actions it took.

[201] It follows from this consideration that Ms Jones has not substantiated her claims against QTAC pursuant to s 340 of the Act.

In dealing with whether there was any claim, Justice Collier made the following observations:

“[9] It was common ground between the parties that Ms Jones bears the onus of proving she has a workplace right under the Act. However, once an employee has established that he or she has a workplace right, and has been the subject of adverse action by the employer, the onus of proof shifts to the employer in respect to the reason for the adverse action by the employer. At this point the onus is on the employer to demonstrate that the adverse action taken against the employee was not for a reason prohibited by the Act.

[10] That the employee is required to first prove the existence of objective facts which are said to provide a basis for the alleged adverse action before the onus shifts to the employer in respect of the prohibited reason was explained by Branson J in Construction, Forestry, Mining and Energy Union against Coal & Allied Operations Pty Limited (1999) 140 IR 131 at [161]–[162] … It is not sufficient for Ms Jones to simply allege that she has a workplace right and that she has been the subject of adverse action – rather on the assumption that Ms Jones is able to prove these allegations, the burden is then cast on QTAC to prove that adverse action was not taken against Ms Jones because of her workplace rights for the purposes of s 340 and s 361 of the Act.”

In order to determine for what reason adverse action may have been taken against an employee, it is relevant to consider the subjective reason or reasons for the taking of the impugned action by the employer, and if the employer is a corporation, of its directors (at [128]). Despite what was found in General Motor’s-Holden Pty Limited v Bowling (1976) 51 ALJR 235, even if all the directors who made the decision are not called, there can be sufficient evidence accepted of the motivation of the board of directors in acting as it did (at [167]). Her Honour found that the only reasons motivating the key directors of QTAC in taking adverse action against Ms Jones, was a concern for the organisation, that Ms Jones had been mistreating staff members, a belief that it was essential that action be taken by QTAC to investigate such allegations, and a wish to ensure that any investigation be conducted with proper procedure, including Ms Jones being given a reasonable opportunity to present her side of the story (at [168]). Her Honour also dismissed allegations that there had been a breach of contract and a failure to provide natural justice to Ms Jones.

Adverse action claims such as this under the Fair Work Act, will very much depend upon the finding of facts made by the trial judge and are a more problematic alternative remedy compared to bringing unfair dismissal proceedings before Fair Work Australia. If one’s advisers believe that an adverse action claim under the Fair Work Act is arguable in the Federal Court using the Court’s accrued jurisdiction, one might also consider pleading the economic torts of conspiracy, interference with contractual relations or intimidation: see Latham v Singleton [1981] 2 NSWLR 843 per Nagle CJ at CL.

About Workplace

Welcome to the Thomson Reuters Australia Workplace Insight website. Whether you are an IR Practitioner or an HR Manager, you'll find news and information to help you stay up to date with Australian workplace relations reform.